Wednesday, June 02, 2010

There Was Only One Catch, and That Was Catch-22

Professor WF referred to Article III standing as "a word game played by secret rules." Apparently it's not the only such game. Yesterday the Supreme Court issued a clarification of the Miranda rule: if arrested you have the right to remain silent, but to invoke it you must speak. Further, the right is waived by speaking.

Yes, you heard that right: the right to remain silent no longer covers being completely silent. Suspects now must say the right password, at the right time, if they want their constitutional protection.

Worse than facially illogical, the decision is just disappointing. No, I'm not talking about the disappointing IKEA-like craftsmanship that is a Kennedy opinion. I'm talking about the "net practical effect," which, as SCOTUS blog points out, will be that police can continue to interrogate a suspect, perhaps for three hours in a straightbacked chair (those were the facts of yesterdays's case), until the suspect speaks. Whatever the suspect says will be deemed a Miranda waiver, rendering the statement admissible and creating justification for further interrogation. In other words, the net practical effect will be to encourage cheap, dishonest police work.

How on earth did we get here? How did we get to a place where the constitutional right to remain silent must be affirmatively invoked, and yet may be passively waived? It is probably concern that Miranda itself was too broad, and there may be something to that -- but why not own up to the real issue?

I get that the police need to interrogate suspects. I get that suspects' constitutional rights get in the way. I even get that honoring those rights can create miscarriages of justice. But Miranda puts the burden squarely upon the police, and backhanded attempts to restructure that balance are exactly as disingenuous as they are effective.

On the bright side, as the Court completes the job of killing Miranda, it will also moot the ridiculous debate over whether people like the Time Square Bomber should be Mirandized. After all, it won't matter anymore.

- - - -

PS: Um. What am I supposed to say if this issue comes up on an MBE question?



Anonymous Anonymous said...

Well, hold on now. The guy remained silent until he didn't. He answered a question. It was the wrong question to answer.

I'm pretty liberal about these things, but consider the alternative. The police are interrogating a man. He doesn't answer any questions, he just sits there. Are the police supposed to, of their own accord, say, "Oh, I see you're invoking your right to remain silent so I'm going to cut off your interrogation?"

No, I don't think so. Maybe the suspect just didn't want to answer *those* questions. The police don't have to assume anything about what rights he is invoking. I think they keep asking questions until he either says "I'm not going to answer any questions" or he says "I want my lawyer." The demand for counsel has always required an affirmative and unequivocal statement, so I don't see why the demand to end the interrogation would be any different.

Just keep in mind -- this guy waived his right to silence by speaking. That's really what the case is about. He can't backdoor in the right that he never asserted after the fact.

6/02/2010 10:24 AM  
Blogger Dan said...

You know, I am sympathetic to both Patrick's post and the above comment. (Way to have a reasonable debate about a divisive issue.) But if we're going to live in the world according to 10:24, and apparently the USSC, we need to change the language of the Miranda warnings. It is fair to say that the police can't be expected to read in an invocation of rights from omissions (or at least that it would be tough to draw a hard line rule on when they should be expected to), but it's equally unfair to hold a detainee responsible for knowing that he has to affirmatively invoke his rights in order to get them, unless we explicitly say so in the Miranda warning.

Right now, police say "You have the right to remain silent." It is perfectly reasonable for a person to believe he would invoke that right by simply remaining silent. If we're not going to allow him to do that, we need to say so up front.

6/02/2010 10:47 AM  
Blogger McWho said...

As for the issue on the Bar: ignore the recent case. The test was drafted prior to the case coming out. You will likely be told this in lecture, too.

6/02/2010 10:49 AM  
Blogger Patrick said...

This comment has been removed by the author.

6/02/2010 11:27 AM  
Blogger Patrick said...


This is great, because I'm usually pretty conservative on these things (abolish the exclusionary rule? sign me up!) so we are both wearing strange hats.

Two places where we disagree. First, the effect of the opinion is to create a presumption against the right. It used to be that the right was simply present; the whole point of a Miranda warning is to make sure people know what is at stake before waiving it. The new rule is the opposite. Now, iunless the right is affirmatively invoked, police may proceed as if it had been waived. And even if it IS invoked, police need not respect it - whatever they can extract after the invocation stands a chance of being treated like a waiver, not like the illegal questioning it actually is.

Second, I don't see the Sixth Amendment right to counsel framework as particularly informative of the Fifth Amendment right to silence. Many rights - even in the interrogation context - need not be affirmatively invoked at all. Your substantive right to not be beaten until you confess, for example, isn't one you must demand in order to enjoy.

In my opinion the real issue is that the court (or at least some of its Justices) dislikes like the state of affairs Miranda has created. There are legitimate concerns there. But the court's current program of lip service and errosion seems to me me far worse than grantig cert to a head-on challenge to the Miranda rule. What they are doing is retooling Miranda. They ought to be frank about it.

(from my phone - sorry for the messiness)

6/02/2010 11:37 AM  
Anonymous Anonymous said...

what's so illogical? police investigate crime. they read you your rights and start asking questions. if you want to assert your right to counsel or to shut up, speak up. how is that so burdensome? in a thousand ways, every day, we expect people to speak up or waive.

6/02/2010 11:52 AM  
Blogger Patrick said...


It's illogical because the right to remain silent now requires not remaining silent.

I never said the new rule was burdensome (though it probably is). I said the decision is a sneaky re-working of the Miranda decision.

Consider two scenarios:

1. Before this decision. The police read a suspect his Miranda rights, and start questioning him. Three hours later, he hasn't said a peep. What's the logical -- nay, the ONLY -- inference to draw? How should a police interrogator react? Under Miranda, once it becomes clear that the suspect is exercising his right, questioning must cease. (And let's not be flippant; on these facts it is clear. Recall that, three hours before, the officer *told* the suspect he has the right to be silent.)

2. The same, but after this decision. Now, despite the Miranda rule, there is nothing wrong with asking further questions, hoping to squeak out something that could be considered a waiver. (Or, worse, that a reasonable police officer could consider a waiver. I still can't tell what the standard is.) Now, just exercising your right is no longer enough. Not only do you have to exercise them, but you have to affirmatively state that you are doing so. This is the part that, in the context of a right to "remain silent," is illogical.

As to the argument that an assert-or-waive rule is generally considered appropriate for constitutional rights, well, no it's not. We would never permit that rule in the context of a home search, of a substantive due process violation, of a free speech claim, of cruel or unusual punishments . . . the list goes on. At any rate, I don't see other constitutional provisions as relevant to the meaning of this one. The Fifth Amendment used to grant a right. Now it also imposes a duty.

6/02/2010 12:08 PM  
Anonymous Anonymous said...

11:52 here.

i appreciate the argument, but "assert your right if you want to assert it," is hardly draconian.

6/02/2010 12:13 PM  
Blogger Patrick said...

No, it's not draconian, but I don't think I ever said it was.

I said that yesterday's decision works a fundamental change in how the Fifth Amendment operates. Instead of simply creating a right, it now creates a right but also bundles it in a presumption that in any given circumstances the right is inoperative. That's as much a change to Fifth Amendment law as a rule that said "unless you state you are invoking free speech, you are presumed to waive the right" would be a change to First Amendment law.

The result, in both cases, is to tilt the Amendment in the government's favor. I guess that's my real problem with the new rule.

6/02/2010 12:18 PM  
Anonymous Anonymous said...

Perhaps we should have to post signs in public that say "You have the right to freely speak."

6/02/2010 3:29 PM  
Anonymous Anonymous said...

Seems like there is a conflation between the right to remain silent and the right to discontinue interrogation. I think this decision does not undermine either right, but rather the implicit invocation of the right to remain silent (i.e. remaining silent) does not invoke the right to discontinue interrogation. However, an explicit invocation of the right to remain silent does invoke the right to discontinue interrogation. Even if the suspect simply stays quiet, this decision does not violate his right to "remain silent." He can still stay silent. The police cannot compel him to talk. If you see these things as two separate rights, then the decision seems completely reasonable.

6/02/2010 4:58 PM  
Anonymous Anonymous said...


I am not really sure I understand your argument, and I am also fairly liberal about these things.

4:58 hit the nail on the head: The only thing that a suspect has to do to preserve his right to stay silent is to actually say silent. If he wants to discontinue the interrogation then he needs to speak up.

6/02/2010 9:58 PM  
Blogger Dan said...

Trust me guys, Patrick is far from the only person upset by this. He's not like coming from way out in left field with this; it has already ignited a firestorm with social justice types.

I think the simple fact that we all, as well-educated law students, can't agree exactly on how one should invoke or waive this right shows the impenetrability of Miranda law's tangled web. We are lucky there are cop shows to more or less explain to the public how this stuff works, cause otherwise, I don't see how anyone could know the extent of their rights besides accidentally stumbling onto them in the course of interrogation.

This stuff needs to be better defined, and this decision--reasonable or not--muddies the waters to the point that they're mostly just dirt.

6/03/2010 1:06 AM  
Anonymous Anonymous said...

Patrick, you mentioned that you don't see how the 6th Amendment Right to Counsel would be useful in analysis of the Miranda context. You appear to have made the common mistake of confusing the Right to Counsel arising from the 5th Amendment as described in the Miranda decision and the "after the initiation of criminal proceedings, crucial stage in the proceedings" 6th Amendment Right to Counsel. Right or wrong, Kennedy's point was that the Right to Counsel embodied in Miranda requires invocation, and he didn't see a reason why another Miranda right with the same constitutional basis should not have to be invoked as well.

That said, I'm kind of in Dan's camp. This seems like a complicated issue, and best practice would seem to be that--at least--police should be required to inform defendants that they must affirmatively invoke the right to remain silent...

6/03/2010 3:58 PM  
Anonymous Anonymous said...

Per my barbri training:

You don't need to affirmatively invoke the right to remain silent.

You do need to affirmatively invoke your right to end the interrogation until you have the assistance of counsel. Similarly, the right to a temporary cessation of questioning (based on the right to remain silent) requires affirmative action. But if you want to remain silent, you can simply remain silent.

6/03/2010 5:39 PM  
Anonymous Anonymous said...

For 10:24, 11:52, and 3:58, from the wall street journal:

Until the very end, Thompkins made only two comments of note: He declined a peppermint candy that the police offered and he complained that his chair was uncomfortable.

Thompkins said nothing else of substance in response to a barrage of police questions. He did not answer the easy questions and ignore the hard ones. He did not answer questions at the beginning of the interrogation and then stop talking later. The police themselves characterized the interrogation as "nearly a monologue."

Still, the police persisted. After nearly three hours, Thompkins was asked whether he believed in God and whether he had asked God to forgive him for his crime. A police officer later testified that Thompkins said "yes" to both questions, and Thompkins was convicted of murder.

6/09/2010 3:41 PM  

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