Free Markets, Free People

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.”

I agree.



Tweet about this on TwitterShare on FacebookShare on Google+Share on TumblrShare on StumbleUponShare on RedditPin on PinterestEmail this to someone

68 Responses to SCOTUS – Miranda means you have to say "yes" to silence

  • I agree with your analysis, as I wrote yesterday on The Beast (which everyone should go and read for pure Bushitler hatred content).  I can’t see how being required to invoke a right to silence just after being warned of it is going to prejudice anybody’s rights.  I have not read everything Sotomayor wrote, but I’m vastly unimpressed by what I have read.

  • I don’t have a problem with the ruling.  There’s nothing here requiring the suspect to speak;  you invoke your right to remain silent by, you know, remaining silent.

    If you then open your fool mouth, you have stopped remaining silent.

  • What?! If somebody says “You have the right to remain silent”, and I proceed to do exactly that, how is it not reasonable to assume that I’m availing myself of that “right”?
    Also, how am I, as a lowest-common-denominator law-abiding taxpayer who has a right to walk around this great nation without having passed the bar, expected to know that the “right” the cop just told me I have has actually been penumbraed-and-emanated down to a “privilege” which I don’t actually get to have unless I fulfill some arbitrary condition that nobody is required to tell me about?
    Or are they required to tell me? Are they required to ask, in so many words, “Do you wish to remain silent?” It doesn’t sound like 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.”
    How can you approve of something where people are “legally presumed to have waived their rights” by failing to explicitly OPT IN? For example: People are quite sensibly annoyed by web site registrations that require an explicit “opt-out” to avoid the site sending you spam — and that opt-out is a visible checkbox on the screen. It’s an attempt to con you into doing something against your own interests, and everybody knows it. If they hid the checkbox and required you to know beforehand that you need to type Ctrl+O or something, that would be quite a bit worse. Not criminal, but unreasonable. Lousy UI design, lousy way to treat your users. You and I would prefer not to do business with somebody like that.
    Would YOU guess this requirement, if you weren’t familiar with this decision? If you’re arrested by mistake ten years from now, WILL you remember, in the adrenaline of the moment?
    Miranda says they have to tell you what your rights are. This decision says “OK, they still have to tell you what your rights are, but they’re not required to actually let you EXERCISE some of those rights unless you happen to know the secret password”.
    Sorry, I rarely disagree with you guys, and never in capital letters, but this is nuts. This crap is in the same league as “collective rights”. And Kagan just made a timid, careerist fool of herself. Alito and Thomas dissented (along with Ginsburg), if she wants political cover.

    • Or are they required to tell me? Are they required to ask, in so many words, “Do you wish to remain silent?” It doesn’t sound like 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.”

      Calm…  After being warned you have a right to an attorney, how do you invoke that right?  You simply ask for an attorney.
      After being told you have the right to remain silent, how do you invoke that right?  You simply say you wish to be silent.
      It is common police procedure now, after a suspect has lawyered-up, but before a lawyer arrives, to keep talking to a suspect (tho NOT asking questions).  The suspect at that point has NO obligation to say a word in response.  Most of us, of course, will; it is very awkward to remain silent when someone speaks to us.  That has been considered for some time an effective waiver of the right to silence.
      So, chill…

      • you are mistaken. You will be provided an attorney if you ask for one or not (at the 1st hearing). You do not have to invoke the right it is provided to you.
        To end questioning you have to invoke the privilege of having your attorney present during it.

        • Where did you get that crap?  I mean, really…?  What “first hearing”?  And what does that have to do with a custodial interrogation?

          • Two different things.  The Sixth Amendment right to counsel is charge specific, and one will be appointed to you at your arraignment if you cannot afford one.  You have a more general right to counsel during interrogation under the Fifth Amendment, as the Supreme Court sees it.

        • No, that just means it stops until your lawyer arrives.  Invoking silence ends it completely.

  • I don’t get all the hubub about you have to say you want to remain silent.

    If you don’t say anything and then suddenly answer a question, you have voluntarily given up your right, at least as it applies to the question you just answered. 

    I don’t understand why this is so hard to understand.

    Let’s try this example:  Suppose you say nothing, or even, say ‘I’m not talking’ and then when the police leave the interrogation room you mutter ‘hah, fooled them, they’ll never figure out I did such and such by doing x, y and z.”

    Would anyone seriously argue that those statetment could not be used against you? You made them voluntarily, just like the defendant did in the case at hand. 

  • 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.

    Actually, it is a right that’s set forth in the Fifth Amendment to the Constitution:

    “… nor shall [any person] be compelled in any criminal case to be a witness against himself …”

    That was what Miranda v. Arizona was based upon.

    Otherwise, your analysis is spot on. There’s nothing particularly earth-shattering about requiring one to affirmatively exercise his/her rights. Tom Maguire did a nice job of laying out why the alternative, Sotomayor method isn’t such a great idea:

    [From the NYT story:]

    Van Chester Thompkins was arrested for murder in 2001 and interrogated by police for three hours. At the beginning, Thompkins was read his Miranda rights and said he understood.

    The officers in the room said Thompkins said little during the interrogation, occasionally answering ”yes,” ”no,” ”I don’t know,” nodding his head and making eye contact as his responses. But when one of the officers asked him if he prayed for forgiveness for ”shooting that boy down,” Thompkins said, ”Yes.”

    He was convicted, but on appeal he wanted that statement thrown out because he said he invoked his Miranda rights by being uncommunicative with the interrogating officers.

    If the police felt the suspect was not being utterly unresponsive, then one can see why they would continue the interrogation. Near-silence is not silence.

    And I guess there could be a real problem with implementing a rule that equated silence with an assertion of the right to end the interrogation. Would ten seconds of sullen silence be enough? One minute? Ten minutes? When does the clock start, and who plays scorekeeper?

    • I realize the “right” is in the 5th Amendment, but, at least as I see it, since it is a “legal” right, it is one granted by government – hence a privilege. It can also be amended away. Real rights, per my philosophy are negative, inherent rights that are universal – life, liberty, property, etc.

      There are obviously two ways to invoke this privilege. 1) remain silent. 2) tell them you invoke the right to remain silent. What 2 does is stop the questioning right then and there. Done. No more. Without such an acknowledgement, police have every right to assume you haven’t decided whether or not you’d like to avail yourself of this legal privilege and continue to question you.

      • I get your point, but wouldn’t that also lead you to say that the right to free speech (1st Amendment) and the right to bear arms (2nd Amendment) are also “legal rights” that can be amended away?

        • The right to self-defense is inherent, but apparently we’ve granted the government the ability to tell us what we can or can’t use for years. In the case of the 2nd Amendment, it is a positive outcome. In the case of a grenade launcher, not so much. Or a shotgun that can hold more than 3 shells. Or an automatic rifle.

          • “The right to self-defense is inherent, but apparently we’ve granted the government the ability to tell us what we can or can’t use for years.”
            The right to remain silent is negative, and exists without regard to whether it is respected in law.  Ask yourself, what are you costing someone else when you do not speak?

      • Your take on the Bill Of Rights is interesting, and sort of opposite mine.  I always saw the Top Ten as simply codifying natural rights that the Framers recognized.  The First is about specific liberties vis-a-vis the citizen and central government.  The Second is about life, and securing all the other rights of men.  And so on…  It was a short, excellent list of inalienable rights that the Founders wanted to be sure were clearly delineated (some felt it was superfluous).
        So, a right to resist self-incrimination was not a “legal right”, but a natural right.  It no doubt stemmed from an Enlightenment abhorrence of torture and other-wise forced or coerced “confession”.

        • In some cases, you’re right, the Constitution and its amendments do codify some inherent rights. But inherent rights and “civil rights” are different animals. The “right” to not self-incriminate isn’t a right so much as a decision. And, might I add, a common sense decision. But an inherent right? I don’t think it rises to that level. However, it has been granted as a legal privilege that we, in my opinion, mistakenly characterize as a “right”.

          Another example is the supposed right you have not to be discriminated against. You have no such “right.” But you have been granted that legal privilege in this country.

          Government’s job is to protect us from force or fraud (that maintains our liberty, an inherent right). The use of force can be overt or “coercive”. If government (police) or anyone does so by either means they are indeed violating a right.

          • Another example is the supposed right you have not to be discriminated against. You have no such “right.” But you have been granted that legal privilege in this country.

            Now, again, I have to respectfully disagree.  “All men are created equal…” means precisely that none can be discriminated for or against at law; the democratic ideal.  Each of us are, to our government, precisely of equal value and merit.  Now, if you were addressing the idea that other people could not discriminate against you using a smattering of criteria, I agree; there is no such “right” outside the legal construct.

          • That’s not the discrimination I’m talking about. Try discriminating in hiring for any reason. Try refusing to sell or provide service to someone for any reason.

            In a free country, other than the legal system, I should be free to discriminate against anyone for any reason and suffer the resultant consequences (loss of sales and revenue, loss of business because others abhor my discriminatory policies, etc.) of my stupidity. That’s liberty (an inherent right). That’s a society where you are allowed to make stupid decision and suffer their consequences. That’s also the sort of society in which lessons are learned much more quickly and without the intervention of government.

            As to your point about government and equal treatment under the law, I’d simply write two words: Jim Crow. Those laws violated the liberty of a segment of the citizenry.

          • This argument is great in theory, but has some practical downfalls.  What of active discrimination by collusion?  You emphasize Jim Crow, but those laws usually dictated only separate facilities and were more limited than history would have you believe.  Many private entities refused service to blacks under any circumstances by their own “free discrimination” without penalty.  We have all heard of the travelling baseball teams that had to travel for miles off the beaten path to find someplace that would serve them something to eat.  That wasn’t Jim Crow at work, it was permissive private discrimination.  Those businesses who wouldn’t serve felt they would lose much more from the white customers then they would gain from blacks, so they made a for-profit decision.  So you have de facto discrimination without the need for government involvement.

            Government enablement is different than government insistence. 

          • Actually, as Walter Williams and other have shown, Jim Crow was designed as an anti-competitive system.  There were people who provided public accommodations (ALWAYS a Commerce Clause issue), who did not want to offer them to Blacks.  Others were happy to offer them.  Jim Crow was ONLY necessary because the latter group existed, and the bigots didn’t want to face the competition.
            The same was true, for instance, of laws in the South against teaching slaves to read.  If it were not an issue, there would have been no pressure for the law.

          • The point, of course, is it was discriminatory. I.e. government based, sanctioned and enforced discrimination.

          • Just as our current system of racial discrimination (affirmative action) is government based, sanctioned, and enforced.  It is…as it was…a repudiation of our best concepts (I won’t say “ideals” because they are part of our charter).

          • But government enablement, as with most government intrusion, distorts the market and the outcomes. It gives permission where, if left to its own devices, the market would punish those making stupid decisions by rewarding those that weren’t.

            I lived through the end of Jim Crow, saw the separate facilities (to include in the federal courthouse in Ft. Smith Ark, btw – bathrooms, water fountains, separate seating areas, which in all cases were inferior to the “white’s only” sections) and they were more pervasive than you might think. They also enabled a culture. And that culture committed henious crimes (lynchings, beatings, etc) in the name of race purity – a purity tacitly backed by government via such things as those facilities mentioned.

            Take government out of the mix and it is my opinion that the Jim Crow culture would have collapsed much more quickly than it did as the meta-culture changed and became more accepting of integration. Music, as we know, was already eroding the foundation of the laws, even with government still backing them, as had military service. Government enabled that part of the culture resisting change. That’s the difference. Had it simply gotten out of the way years before, my guess is that culture would have collapsed much sooner.

          • I was partly raised in LA, and partly in San Antonio.  I saw some of Jim Crow, too.  And I agree with your statement on the institution of bigotry in the law making it far more durable.  That was my point, respecting the anti-competitive nature of the law.
            Some of the people of the South…pretty much unheralded heroes of the Civil Rights Movement…were business leaders who backed peaceful change.  They saw that the grinding injustice of Jim Crow had to change, and they were powerful forces in working toward that end.
            The same argument you make has been made…with considerable merit…respecting the issue of slavery.  There are metrics that show it was already on the way out.  This is rational, as slavery is actually awful economics, in addition to being a repudiation of our best concepts, I’ve already noted.  Laws, as you note, institutionalize crappy stuff, and make it much more durable.  I have written elsewhere that the six most dangerous words in our language are “There ought to be a law…”

          • One of my favorite stories of the end of that era comes from Hosea Williams who was a lieutenant of MLK’s. He said the day after the Civil Rights Act of ’64 was passed, ending that era forever, he was driving through Demopolis, AL. I don’t know if you’ve ever been there but it is truly a little redneck, off the beaten path town in the deep south. Hosea decided he’d stop for lunch. And, he said, he decided he was going to eat in the white cafe. Well, he changed his mind about 5 times and then, remembering that they’d fought long and hard for this, stiffened his spine and pulled in. He said he got out and he wasn’t sure he could make it to the door his knees were shaking so badly. But he straightened up, went up to the cafe, opened the door and walked in. He was met by a white waitress who smiled and said, “yes sir, where would you like to sit.”

            He said, “in that instant I realized that there were a whole lot of white folks who were just as glad this was over as we were.”

            That speaks very eloquently to my point.

          • Good points, but the truly free market is also a double-edged sword.  In theory, it should economically punish those who wish toe engage in those kids of discriminatory decisions, but only if there is an insufficient portion of the populace unwilling to enable it privately.

            Rewind to Mississippi in 1950.  If I run a bar, and I scream from the hills that I refuse to serve blacks, don’t you think there is a sufficient portion of the white population that will come and patronize my facility precisely because I don’t serve blacks?  I certainly can’t be punished if that is occurring.  Sure, there will be others who will serve blacks and be benefitted economically, but then you’re just back to separate facilities with or without government intervention.

          • Sure, there will be others who will serve blacks and be benefitted economically, but then you’re just back to separate facilities with or without government intervention.

            And who is hurt by that?  I suggest nobody, unless you are assuming that a non-bigoted bar would inherently be “inferior” somehow.  Again, the point of Dr. Williams’ observations is that pressure for Jim Crow law came as a response to PROHIBIT open accommodations, BECAUSE they existed, and bigoted people did not want to face the competitive disadvantage of their bigotry.
            Liberty is not just a fine moral ideal.  It is also good pragmatic policy, and good economics as expressed by market capitalism.  Well-intentioned people (as I assume you to be) sometimes want to suspend it, because they doubt the goodness of other people.  Persuasion is ALWAYS a better option, IMNHO.

          • But whose liberty are we talking about?  What about when one person’s liberty inherently denies another his?

            Using the continued example, what if you are a black man stranded on the highway, and the nearest non-bigoted bar is 150 miles away?  Isn’t it better for society, through its elected officials, to simply say there will no longer be bigoted bars at all?  Why isn’t ensuring equal treatment for all its citizens, whether public or private and regardless of location, one of the only principle functions of government?  I think 99% of the federal government ought to be scaled back, but this is one area I think they have to be involved.

          • Why isn’t ensuring equal treatment for all its citizens, whether public or private and regardless of location, one of the only principle functions of government?

            This is PRECISELY why the Commerce Clause ALWAYS (I mean from our earliest jurisprudence) was held to set up a PUBLIC ACCOMMODATION exception to license for a sector of private businesses.  A small set of businesses, by virtue of what they chose to do, were under a special requirement NOT to discriminate.  This flowed from experience under the Articles Of Confederation, where “foreign” travelers (people from another state) were sometimes denied equal treatment to citizens of that state.  This was seen as a fundamental flaw of the Articles (also the general genius of “Full Faith And Credit”).
            This was wired around by the court-created concept of “separate but equal”.  The Civil Rights Act of 1964 was intended to correct that judicial perversion.  That, to me, is totally consistent with the Constitution.

          • No. Because there is not inherent right to a drink. Nor is there an inherent requirement that you do business with anyone. And capitalism is the voluntary exchange of value between two consenting individuals, not a coerced or forced exchange. In fact, government’s job is to prevent coercion.

            We can think of lifeboat scenarios all day long, but for 99% of the situations found in normal life, it works just fine.

          • Dunno, but would you agree that, for an innkeeper, or someone who is a common carrier, there NEEDS to be a special category…that they chose to enter…to facilitate commerce between the states?

          • No. Again, the situation will take care of itself. With the proliferation of both motels and common carriers, there is certainly someone who will be more than happy to have the work or the guest and those who choose such discrimination will suffer those consequences.

            For instance, how about those, who for whatever reason choose not to fill prescriptions for contraception or the morning after pill? You won’t fill my prescriptions I’ll take my business somewhere else. But despite the fact that a particular pharmacy won’t fill the prescription doesn’t mean the person is denied the meds. It simply denies them the convenience of that particular store.

            If they make it clear UPFRONT they’ll not fill such prescriptions, then that is their condition of doing business. Same with hotels, motels or common carriers. There is no right to have someone do business with you.

          • I think we have to acknowledge a difference between a particular type of prescription drug and an entire racial classification of people.  It’s a bit of a strained analogy.  It also fails to consider that perhaps no pharmacy for 1000 miles would do business with you for whatever reason. 

            You say that privately owned businesses should be permitted to discriminate.  If you don’t like it, go to another business.  I say that if you’re engaged in interstate commerce, you can’t discriminate.  If you don’t like it, get the hell out of interstate commerce. 

            Besides, aren’t we really arguing about the powers of state government?  I thought all we libertarians were supposed to want federalism!  If federalism was the status quo, then the states of the south would have continued to be free to not only engage in discrimination, but legislate it.

          • Federalism is fine, but what I really want is liberty. And I want a system that allows stupidity and failure for whatever dumb reason someone can invent (assuming they don’t violate inherent rights) because those sorts of systems, like capitalism, are mostly self-correcting. As soon as government begins intruding and denying liberty, then we get “enabled” to do things that liberty would most likely have caused to go extinct in much shorter order.

          • Forget the innkeeper for a moment.  What if this scenario involved a bleeding man and a discriminating private hospital?  To you, would that be a special category?
            After all, it’s not like the man can simply say, “screw you then, I’ll just take my business elsewhere.”

          • I think the Hippocratic oath pretty much covers that.

          • Absolutely. But then there are also those who are going along only because of cultural and peer pressure enabled by Jim Crow laws. See my story about Hosea Williams tucked under a comment by Ragspierre. Yes, you will have an all-white bar, or a smoking bar, or whatever. But those who are no longer held by peer and cultural pressure enabled by government intrusion won’t be there because there is no longer a cultural penalty for not being there. They may instead frequent establishments which are integrated. And, in fact, it may be the whites only or blacks only bar owner, instead, who finds himself on the receiving end of cultural pressure to change.

            Again, I wonder, given Jim Crow’s existence, whether the Mississippi of 1950s would have actually been like that had those laws never existed.

          • “Yes, you will have an all-white bar, or a smoking bar, or whatever. But those who are no longer held by peer and cultural pressure enabled by government intrusion won’t be there because there is no longer a cultural penalty for not being there.”

            Precisely.  Laws such as those we are discussing establish monopolies…in this case, a homogenized code of conduct that is enforced by the police power of the state.  They act on all citizens…black and white, gay and straight…to compel a standard of “decency” as defined by people quite willing to impose their view of “decency”.  As we can see, those views are subject to change.  But change would ALWAYS be a more democratic…and less difficult…process if people were left to choose their own idea of decency.  And, in any event, many of us feel that is our intrinsic right…that is, we get to choose even to be wrong, and eat the consequence.

          • As to your last point; I totally concede your point, while also just observing that Jim Crow was an awful contradiction of our Constitutional values…as, paradoxically, was slavery.
            I agree with your other points, as well.  As a collateral point, the reason capitalism is vastly morally superior to any other economic philosophy of which I know is that a capitalist (a true capitalist) never considers extraneous traits when hiring, purchasing from, or selling to others.

  • The confusion is between rights and privileges, as you note, but you got the rights and privileges wrong. You have the right to remain silent, and “invoke” it simply by not talking. The defendant in this case did exactly that for several hours. You have the privilege to end questioning by either asking for a lawyer or stating your intent to not answer questions. As far as I can see, this ruling says that you have to explicitly state you will remain silent in order to gain the privilege of ending the questioning. The ruling seems to me to be perfectly correct, and the critics to be confused.

    • I certainly agree that you can remain silent and make the point moot, but the “right” in question is a “legal right” under the 5th amendment and thus a priviledge in reality, since it can be amended away just as easily as it was amended into existence. That, at least by my definition, renders it anything but a “right”.

  • There is no question that what is contained in the Fifth Amendment to the Bill of RIGHTS is not a privilege.  Privileges are evidentiary issues, subject to constant amendment by various legislatures.  As for Sotomeyer, as counter-intuitive as you think it is to need to speak to invoke silence, it is equally counter-intuitive to assume that because you happen to be engaging in conduct permitted by a Constitutional Amendment, whether knowingly or unknowingly, that you are in fact explicitly invoking that right.  I don’t currently have any soldiers living in my home.  Am I invoking my Third Amendment right?  Police are not mind-readers, nor should they be expected to act as such.  Of course, there is a compelling counter-argument that the text of the amendment, read literally, would never allow statements by a criminal defendant to be admitted under any circumstances.  I don’t think we want that.

    • So what happens if, by some odd chance, the 5th amendment is done away with by the Constitution’s amendment process. Yeah, I know it is unlikely, but go with me on this. What then are those legal guarantees/privileges worth? What would invoking you “5th Amendment right” grant you then?

      • I suppose if the Bill of Rights was repealed, we wouldn’t be having this conversation.  That’s not really the issue.  The founders realized that the government should not be able to grant and repeal “privileges” – or whatever you want to call them – on a whim.   You place the emphasis on the government as the benevolent bestower of privileges, and argue that those may be taken away at the government’s insistence.  The founders of this country recognized the inherent flaw in that concept, and created this country to work in the reverse; the people retain the rights and the government is (intended to be) granted limited privileges.

        The Ninth Amendment text is used as a guide to the interpretation of the first ten amendments, and it makes one thing very clear:

        The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. (Emphasis added.)

        You have a right not to be the star witness in your own trial.  Like any other right, you may waive it, but your waiver must be knowingly and intelligently made.  Anything less opens you up to abuses of police power that go beyond the imaginable.  Each of the first ten must be retained as rights, and not simply an evidentiary privilege to be determined at the time of trial.

        • I disagree – that really is the issue. A right is something I don’t have to invoke, that I have inherently (universal and inherent in man’s requirement to live as man) and that on one can take away (as opposed to violating it). They are an integral part and requirement of of my being a sentient human being and surviving as one. I live, therefore I have a right to do those things (liberty) that will further and sustain my life (property) as long as they don’t violate the same rights in another.

          I agree with your point about what the founder’s intent was and why they did what they did. However, I don’t believe everything they codified in the Bill of Rights addressed inherent rights directly. I think that many of them are legal privileges granted and codified to enhance those rights. They don’t address the inherent right of self-defense directly. But they do grant the legal privilege to the population to own and use guns. If the second amendment didn’t exist, the government could argue we couldn’t own guns (and has many times, even with its existence). That, in itself, doesn’t abrogate the inherent right of self-defense. But it does makes it much more difficult to execute.

          There is an inherent right to self-defense. However, what type of weapon you can use seems to be debatable.

      • The Founders knew they could not compel us to keep what they had given.  So we COULD elect to live as slaves by tearing down our charter.  But history shows us a much more likely avenue…the Supreme Court simply smears the meaning of the Constitution all over the map, and America responds with apathy.  FDR conducted a revolution, and nobody (almost) even muttered in protest.

  • You have the right to remain silent. You do not have the right to force the police to remain silent. The Supreme Court said in Miranda that the police must remind you of your rights, they did not say the police should be silent.

    • But if you have the privilege of getting them to stop pestering you until your lawyer shows up, it certainly is a nice privilege to invoke.

  • And what the hell does it matter that I had to speak to invoke my right to remain silent.  This is for real life arrest we’re talking about here, not some game of schoolyard ‘made ya look!’.

  • Here’s my problem.  Set aside Miranda.  Let’s look at the actual enumerated right.

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    To me, to hold someone and question them for several hours while they refuse to testify against themselves (and silence is a refusal) is an attempt to compel them.  To me, that is where this ruling falls apart.  If that isn’t the case, then why don’t we just go to the Japanese system where they question you for 100+hours straight until you finally confess to something/anything?

    • Your observation is correct.  There always has been tension between good public safety policy and our civil liberties, as there should be.  Holding someone and questioning them for hours has been held to be an acceptable accommodation of that tension.  Old movies give us a wonderful window on how these concepts have changed over time.  The “third degree” was both real and common…and nobody thought it was horrid.

  • I still thnk you’re all confused. 

    Correct me if I’m wrong but all Miranda v Arizona means is that once you invoke you’re right, THE GOVERNMENT CANNOT USE WHAT YOU SAY AGAINST YOU AT A TRIAL.

    Suppose, for example this scenario:

    I’ve been arrested for kidnapping a 6 year old.  I invoke my Miranda Rights that I want an attorney and to remain silent.

    The police say ‘we understand but help us find the child.’

    Then I say, look in this general area and you’ll find the kid.  The government does and does.

    I don’t believe my statement could be used against me in trial: ie only the guilty would know

    .  The government would have to develop other evidence.
    Isn’t that all Miranda does?

    • No, not exactly.  Change your scenario to this: after you invoke your Miranda rights, the police officers comment to you that the mother is frightened to death for the welfare of the child, and all she wants is for the child to be found safe.  Nobody wants any outcome more than that (which is partially a lie).  So, you tell them where to find the child.  You have just volunteered information that is an abrogation of your rights, and it can be used against you.  Caveat: I am a CIVIL attorney, and I DO NOT practice criminal law, so I think what I’ve just related is true, but I am not an expert.

  • The SCOTUS has indicated that actual human speech, and not the lack thereof, is required to make a verbal statement; even if that statement is that you wish to make no additional statements.  Further, it sets forth a simple standard for verbal statements … words coming from one’s mouth.
    I think this standard is easy for all to live with.
    The only complicating matter is the grey zone if a detainee does not indicate he/she understands their Miranda rights, when asked.

  • For the first time, I have to disagree with you, Bruce.
    The Right to remain silent goes hand in hand with the Fifth Amendment.  It isn’t a privilege, because a privilege can be revoked.  The Fifth Amendment grants, as a right, to no self incriminate.  Speaking to the authorities self incriminates you.  Therefore, it is a right to remain silent while being interrogated.
    Simple logical truth table my friend.  T + T = T on the Cartesian chart.

    • I always took Miranda to mean EXACTLY what it says – “ANYTHING you say CAN be used against you…”.  There’s no caveat there that implies there is a time when things you say in front of witnesses other than your legal consul CANNOT be used against you.    IF you can really get them to stop hammering on you by simply saying “I’m invoking my right to remain silent, go away now”….
      I thought the way you did that was to request an attorney be present during your questioning, does this mean you can get them to lay off without also requesting an attorney be present?

      • The “mind reading” police will determine that you need an attorney.

      • My understanding is that, once you invoke the right to counsel, QUESTIONING has to cease IF anybody wants to use the responses in your trial.  That does not mean it has to cease IF the information is needed for something besides evidence in the suspect’s trial.  I can be used in an accomplice’s trial, FI.
        ALSO, the police can…and OFTEN DO…continue speaking to you WITHOUT ASKING QUESTIONS.  IF you respond with incriminating evidence, THAT IS ADMISSIBLE.

    • Key word, Joel – “grants”. Rights aren’t granted.

      • Correct.  Rights aren’t granted.
        Privileges are.

  • Idk.

    Is non-responding then considered not invoking your right to silence and now that can be brought out in court that you were non-responsive casting you in a bad light but if you used the magic words, they couldn’t deliberately highlight your silence in a negative way. 

    • They’ve always spun your invocation of the 5th amendment to be indicative of guilt anyway.  That same old refrain f “if you’re not guilty why won’t you talk to us?  If you’re not the guy, why won’t you give us your DNA?  If you don’t have anything illegal in your house or your car, why can’t we search it?”
      All predicated on the premise that an innocent man has nothing to fear from the law.  Well, ya know, it may not be the law I fear, it may be the people charged with enforcing it that have me a little nervous.

  • With the proliferation of both motels and common carriers, there is certainly someone who will be more than happy to have the work or the guest and those who choose such discrimination will suffer those consequences.

    Well, you assume something that I don’t think is a fair assumption…especially historically.  Often in time…and even today…you don’t have options.  There was  AN inn…if you were lucky…within a day’s travel.  In some places in the U.S., I could show you the same condition right now.
    But I think here we agree to disagree.  Perhaps what makes you define yourself as a Libertarian and me to define myself as a conservative.

  • In briefly perusing the majority and dissenting opinions, a couple of things become clear:

    1.  One can find a SCOTUS precedent for just about ANY interpretation of ANY law

    2.  The dissenting justices are either fools or else have zero faith in American judges, jurors, defense attornies, and (come to it) criminals.

    The view of the minority seems to be that, in order to waive his right to silence, a suspect practically has to sign a notarized statement in his own friggin’ blood, and even then he can withdraw the waiver at any time.  Merely refusing to say something for a short period of time – even refusing to acknowledge that he has heard and understands his rights – is de facto evidence of an intent to remain silent (be interesting to try that in front of a Congressional committee!).

    Now, Phelps raises a good point:

    [T]o hold someone and question them for several hours while they refuse to testify against themselves (and silence is a refusal) is an attempt to compel them.

    This is a good argument in favor of the minority view… except that it denies the intelligence and even self-interest of other parties involved.  Are we to expect that a suspect, having been advised that he has the right to remain silent AND have an attorney present, will just sit for hours and hours of relentless questioning until he finally, out of desperation, breaks down and confesses to ANYTHING to get the police to stop?  Are we to expect that even the most bungling public defender would sit still for this?  Are we to expect a judge or jury to give any credence to a confession obtained under such circumstances?  Are we to expect an appeals court to uphold a verdict obtained in this manner?

    I am not so naive as to believe that police and prosecutors would NEVER try to badger or trick a defendent into confessing, but I also think that requiring a suspect to say, “I don’t want to talk to you” or “I won’t say anything until my lawyer gets here” or “I wish to invoke my rights under the Fifth Amendment of the Constitution” (the last if he’s a Clinton administration official!) is not a huge burden to place on him.

    I add that a suspect who remains COMPLETELY silent and undemonstrative, while he may not be explicitly claiming his Fifth Amendment rights, is effectively getting them.  This was Thompkins’ mistake: the dumba** managed to keep his trap shut for a couple of hours, then slipped up and essentially confessed.  His defense now seems to be, “Oh, sh*t!  Did I say that out loud???  Um, fellows, since I didn’t say much of anything for the past couple of hours, can we pretend that I didn’t really say what I just said?  Please?”

  • I know of no portion of the Hippocratic oath that covers such a topic.  But assuming arguendo that it does, who will enforce it?