The New Miranda Rules

The Supreme Court ruled Tuesday that criminal suspects should speak up if they want to preserve their right to remain silent. This is a stunning shift concerning the latest test of the court's famous Miranda rule and shifts the burden to suspects to invoke their right to refuse questioning. If we can go back to 1966 and remember why the original decision was rendered, it is hard to understand the court’s reasoning today. When we consider law enforcement practices prior Miranda it was necessary for the court to require law enforcement to make what became known as the Miranda rights part of routine police procedures to ensure that suspects were informed of their rights. This decision is widely viewed as a huge setback to citizen’s rights.

This is a drastic shift from the spirit of the 1966 law that says; “statements made in response to interrogation by a defendant in police custody will be admissible at trial only if the prosecution can show that the defendant was informed of the right to consult with an attorney before and during questioning and of the right against self-incrimination prior to questioning by police, and that the defendant not only understood these rights, but voluntarily waived them”.

The newest member of the court, Justice Sotomayor wrote in her dissenting opinion that "Today's decision turns Miranda upside down," while accusing the majority of casting aside judicial restraint. "Criminal suspects must now unambiguously invoke their right to remain silent … which, counter intuitively, requires them to speak. 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."

Justice Sotomayor, a former prosecutor who some had speculated might be less protective of the rights of suspects than other liberals on the court, called the decision "a substantial retreat from the protection against compelled self-incrimination." She was joined by Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer. Justice Anthony M. Kennedy who wrote for the majority said, "Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent.” Kennedy was joined, of course, by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.

A little history about the landmark Miranda v. Arizona 384 U.S. 436 (1966) case with its 5–4 decision of the 1966 Court, which revolutionized the way the nation's police departments were required to interrogate arrested persons by informing a suspect of their rights under the ruling, termed a Miranda warning. The Miranda decision was widely criticized when it came down, as many felt it was unfair to inform suspected criminals of their rights, as outlined in the decision.

President Nixon and many conservatives denounced Miranda for undermining the efficiency of the police arguing that the ruling would contribute to an increase in crime. Nixon, upon becoming President, promised to appoint judges who would be “strict constructionists” and who would exercise judicial restraint. Many supporters of law enforcement were angered by the decision's negative view of police officers. The federal Omnibus Crime Control and Safe Streets Act of 1968 purported to overrule Miranda for federal criminal cases and restore the "totality of the circumstances" test that had prevailed prior to Miranda.

The validity of this provision of the law, which is still codified at 18 U.S. Code 3501, was not ruled on for another 30 years because the Justice Department never attempted to rely on it to support the introduction of a confession into evidence at any criminal trial. Miranda was undermined by several subsequent decisions which seemed to grant several exceptions to the "Miranda warnings," undermining its claim to be a necessary corollary of the Fifth Amendment.

In this case the court ruled 5 to 4 that a Michigan defendant who incriminated himself in a fatal shooting by saying one word after nearly three hours of questioning had given up his right to silence, and that the statement could be used against him at trial. In the case before the court, suspect Van Chester Thompkins was read his rights and, at police request, repeated some of them out loud. But he did not sign an offered waiver of the right, and he did not acknowledge that he was willing to talk. Nor did he say that he wanted the questioning to stop.

Detectives persisted in what one called mostly a "monologue" for about two hours and 45 minutes, until one asked Thompkins whether he believed in God. Then a follow up question - "Do you pray to God to forgive you for shooting that boy down?" Thompkins answered "Yes" and looked away. The statement was used against him, along with other testimony, and Thompkins was convicted of killing Samuel Morris outside a strip mall in Southfield, Mich.

The U.S. Court of Appeals for the 6th Circuit said that Thompkins's prolonged silence "offered a clear and unequivocal message to the officers that Thompkins did not wish to waive his rights." "The fact that Thompkins made a statement about three hours after receiving a Miranda warning does not overcome the fact that he engaged in a course of conduct indicating waiver." Today the conservative arm of the Supreme Court disagreed making the case a president and now law. This decision, I believe will have a far reaching dangerous impact on a society that is becoming largely more diverse.

I am not a lawyer but I was around prior to the 1966 ruling and I will tell you that there was significant reason to establish that law because of what police departments were able to do to suspects in custody, and get away with it. So I would encourage you to advise you children and young people how to conduct themselves once they have been detained by police, and to be aware yourself that anything you say can and will be used against you.

The John T. Wills Chronicles