Tuesday, June 01, 2010

The "opt in" Constitution?

If you want to remain silent, you’d better speak up.

That’s what the United States Supreme Court has told criminal defendants who want to invoke their Constitutional right to remain silent. In Berghuis v. Thompkins, the Court ruled on June 01 that police can continue to question an arrested suspect as long as the suspect doesn’t explicitly tell the police he doesn’t want to talk.

The Berghuis ruling limits the rule in Miranda v. Arizona (1966), which requires police to advise criminal suspects of a number of their Constitutional rights, including the right to remain silent. (Bonus Constitutional fact – the right to remain silent comes from the Fifth Amendment’s protection against being compelled to testify against yourself).

Berghuis doesn’t change the rule that police have to read Miranda rights to a criminal suspect. What it does is allow the police to continue to question a suspect until he “affirmatively invokes” his Constitutional right to remain silent. Before Berghuis, police would have to wait until the suspect waived his right to remain silent before they could interrogate him.

In Berghuis, the police were investigating a murder. They were questioning a suspect under arrest, Van Chester Thompkins. They had Mirandized Thompkins (although he refused to sign a form acknowledging he understood his rights) and continued to interrogate him. Thompkins never told the police to stop the interrogation, so the police continued. They asked Thompkins if he believed in God, if he prayed to God, and then (start the tape recorder) whether he prayed to God for forgiveness for “shooting that boy down.” Thompkins said yes, and that “yes” can and was used against him in a court of law.

Thompkins was convicted of murder, and appealed, saying that his “yes” was a violation of his right to remain silent and should not have been used against him. The lower court agreed with Thompkins. The Supreme Court did not.

Justice Anthony Kennedy, writing for a majority that (unsurprisingly) consisted of Kennedy and the Conservative Four, said that a suspect’s waiver of his Miranda rights can be presumed when the suspect has been advised of his rights and chooses not to exercise them. The Berghuis decision significantly limits language in Miranda that said “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.”

Not anymore. In Berghuis, the Court cut that portion of Miranda out, and fundamentally changed how a suspect’s Constitutional rights are understood. Before Berghuis, there was a presumption that a suspect will invoke his Constitutional rights (such as the right to remain silent), and the police would need the suspect to actually waive those rights before proceeding with an interrogation. Now, police can assume that a suspect is waiving his rights during an interrogation unless the suspect specifically says he is invoking those rights.

In other words, the Supreme Court changed the right to remain silent from an “opt out” to an “opt in.” It shifted the presumption from protecting the accused to assisting the government. It is, as Vice President Joe Biden would say, a big (SNIP) deal.

In the majority opinion, Kennedy said that Thompkins understood his rights when he chose not to invoke them. But how did Kennedy know that? After all, Thompkins didn’t sign the form saying he understood his right to remain silent. What if he didn’t?

Kennedy said that nothing has changed about the Miranda rule requiring a suspect to be advised of his rights in such a way that he understands them. But how can an officer tell if a suspect understands his rights if that suspect doesn’t say anything? In addition to allowing the police to assume a suspect is waiving his right to remain silent, Berghuis also allows the police to assume that the suspect understood his right in the first place and question a suspect who may not understand his Constitutionally-guaranteed right to remain silent – which was exactly the concern the Miranda court had when it made the advisement requirement back in 1966.

Strangely enough, we haven’t heard a peep from conservatives who get very upset about “activist judges” imposing their own policy views on the country. We haven’t seen a mis-spelled sign from the Tea Parties around the country who shout about their fears of the Constitution being destroyed by the socialist-communist-Marxist-Nazi-Klingon-liberal President Barack Hussein Obama. Berghuis seems to be a radical change in the law, and a significant limitation on Constitutional protections. And yet, a very strange silence from both parties.

Rookie Justice Sonia Sotomayor wrote the dissenting opinion, pointing out how the Berghuis decision “flatly contradicts” previous decisions from the Court, sets up “an unworkable and conflicting set of presumptions,” and “at worst, it overrules sub silentio an essential aspect of the protections Miranda has long provided.”

I know that’s a lot of quotes, but it’s a pretty impressive dissenting opinion from a first-timer. Although I do think she’s showing off a little with the whole “sub silentio” (meaning, basically, I’m not saying, I’m just saying) reference.

Given that Miranda has been called into question even by current Attorney General Eric Holder, I suppose civil libertarians should be pleased that the Court didn’t just outright overrule the decision in its’ entirety. But the underlying rationale of Berghuis is definitely concerning. Will the Court make other Constitutional rights “opt in” for suspects? Will the right to a jury trial be presumed waived? How about the right to an attorney?

In other words, how much more will the scales tip towards the government and away from the accused as the years go on?

1 comment:

Anonymous said...

What if I was in a situation where I was arrested and the police started in with their routine, can I just say "I am invoking all my constitutional rights" or do I have to say each one relevant to the circumstance. I wonder this because my observations are such that the police are slowly circumventing peoples constitutional rights. In Logan Ohio, if you are young (20-+) and your stopped for a traffic violation, your car WILL BE searched. If you refuse, it will only take a few more minutes longer to search your car, because a dog will be brought on seen and 9 times out of 9, the pup will give off his secret signal and your car is searched. I spoke with one officer and he said if someone refused to allow the search, he would annotate that in the report that "Joe refused to cooperate ..", that would leave one with the impression that Joe had done something wrong, So now we are placed in a position that exercising your rights is frowned upon by the police.