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Thursday, November 4, 2010

The Supreme Court Strips Miranda Rights to Bare Bones

Most people know or have heard of the Fourth Amendment right to remain silent that was espoused in Miranda v. Arizona. The right to remain silent is a vital component of liberty. It is one of the few rights individuals have to protect themselves from unwanted intrusions by law enforcement. It also gives us some power and leverage against the considerable power of the police.

The Supreme Court’s narrow holding in Berghius v. Thomkins eradicates years of precedent in one fell swoop by requiring that a person who wishes to remain silent “unambiguously and equivocally” invoke that right. No definition is given to what unambiguous means or who decides whether an invocation is equivocal. Instead it gives great deference to the police in deciding whether an individual has succinctly invoked his/her rights. This is a troubling holding because it places a large amount of trust in the police. What will prevent police from neglecting to clarify an ambiguous statement?

Justice Sotomayor has these same questions and further criticizes the foundations upon which the court makes it decision:

“Police may well prefer not to seek clarification of an ambiguous statement out of fear that a suspect will invoke his rights. But “our system of justice is not founded on a fear that a suspect will exercise his rights. ‘If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system.” Berghius v. Thompkins, 130 S.Ct. 2250, 2277 (2010).

Justice Sotomayor’s statement raises another question for me. What if a person attempts to invoke her right to remain silent in another language or broken English? What then? Is this an ambiguous invocation or are the police required to bring a translator? I know police are required to provide the accused with their rights in their native language in, but what happens after? Or what about a young offender, or a person with mental illness what standard should we place upon them to invoke their rights? Is there only one standard? These questions are left unanswered. All that we are left with is this:

“A requirement of an unambiguous invocation of Miranda . . .“avoid[s] difficulties of proof and ... provide[s] guidance to officers” on how to proceed in the face of ambiguity. . . Thompkins did not say that he wanted to remain silent or that he did not want to talk with the police. Had he made either of these simple, unambiguous statements, he would have invoked his ‘right to cut off questioning.’ (citation omitted). Id. at 2260.

In this case the defendant had been silent for 2 hours and 45minutes while the police continued to question him. His choice to remain silent was not enough for the justices to find he had invoked his right.

The questions left open by this decision are ripe for discussion and we will be tackling some these issue on Thursday, we ask that you also share your ideas an analysis here as part of an ongoing discussion.

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