In the criminal justice system, everyone thinks a suspect has the right to remain silent and seek an attorney even if he/she cannot afford one as one will be appointed. We hear those words on Law and Order and every other TV police drama. On television, the police stop interrogating when the suspect invokes the right to remain silent. But in the real criminal world, things are not as easy and clear cut.
The Supreme Court ruled on June 1, 2010 that in order to remain silent, suspects must now break their silence to tell the police they want to remain silent to stop an interrogation. The Supreme Court’s conservative majority ruled that a suspect cannot invoke the right to remain silent by merely staying silent. Isn’t that like an oxymoron?
In the case before the Supreme Court, the suspect remained mostly silent for 3 hours except for a word or two. Finally, the police hit a nerve after 3 hours and the suspect answered with a “yes” incriminating himself. The statement was used to convict the defendant of murder. Now according to the recent Supreme Court conservatives’ decision, suspects must verbalize they want to remain silent or do not want to talk to the police in order to cut off all questioning. The police and prosecutors are partying now over this decision.
The Court’s decision is in stark contrast to the case of Miranda decided over forty years ago and standing for the proposition that the police must tell a suspect they have a right to remain silent and that a lawyer will be appointed if one cannot be afforded. Justice Sotomayor, a former prosecutor, wrote a scathing dissent recognizing that the court’s ruling is counter productive to decades of Miranda case decisions. Miranda indicates that in any manner, at any time prior to or during questioning that a suspect wants to remain silent, the police interrogation must stop. In stark contrast to Justice Sotomayor, Solicitor General Elena Kagan wrote a brief siding with the police. Is this a hint of things to come if Kagan receives confirmation?
So now in order to invoke the right to remain silent after arrest, silence is not enough.